Rejecting the argument that Congress intended to go as far as it could to stop any research based on human embryos, the D.C. Circuit Court on Friday cleared the way for the government to continue to pay for research that uses “stem cells” that were previously taken from embryos, so long as new cell lines are not created with federal money.   The creation of a cell line requires the destruction of a human embryo, and that is what Congress has barred from federal funding, the panel ruled in a 2-1 decision in a case that seems likely to go to the Supreme Court.

Research on embryonic stem cells has long been controversial, especially among those who believe that embryos as well as human fetuses should have all the protection of living human beings, but such research has also long been seen as a potential breakthrough toward curing major diseases.  A stem cell line made up of former embryonic tissue can be used to create scores of different kinds of cells, to contribute to the body’s ability to renew and repairs its tissues, and thus aid in medical treament. (A “stem cell” is one of the human body’s maser cells; it has the ability to grow into any one of the body’s more than 200 cell types.)

Beginning in 1996, Congress every year has enacted a flat ban on federal funds either to create a new human embryo, or to do research in which an embryo is destroyed, discarded or injured.  The second part of that ban was at issue in Friday’s Circuit Court decision, and the panel adopted the interpretation the Obama Administration has given to the wording.   As a result, researchers may continue to obtain federal money to pay for work with existing embryonic cell lines, made of materials taken from embryos that had been used in test-tube fertilization efforts.  Such research is ongoing under 2009 guidelines.

During the second Bush Administration, the President permitted federal funding only of stem cell research that was done on already existing cell lines, some 60 in number.  But, when President Obama entered the White House, he lifted that restriction, and allowed federal money to pay for research on embryonic cells created during in vitro fertilization efforts and donated with the consent of individuals who had sought that treatment.  Under guidelines issued in July 2009, such research has been expanding, and a significant number of such projects are now ongoing.

Two scientists who have received federal funding, but who work only with adult stem cells, challenged this expanded research use of embryonic cells as a violation of the congressional ban (which goes by the name of its original sponsors — the so-called “Dickey-Wicker Amendment).  Adult stem cells can be taken from various human organs or tissues, but embryonic stem cells can only be found in human embryos, and can be extracted only by killing the embryo.  They are particularly useful to medical research, because the derived cells can be channeled to grow into any one of 200 cell forms.  The two scientists argued that any research done, after an embryo is killed to produce stem cells, is illegal, because every research effort necessary flows from the original destruction of the embryo.

A federal judge embraced that challenge, and issued an order to stop the ongoing projects permitted by President Obama.  The Circuit Court put that ruling on hold, however, while it considered the government’s appeal.  In its new ruling, written by Circuit Judge Douglas H. Ginsburg and joined by Circuit Judge Thomas P. Griffith, the panel decided that the two scientists are not entitled to a preliminary injunction to stop the research.   Circuit Judge Karen LeCraft Henderson dissented, arguing that Congress has meant to forbid use of federal money to pay for any embryo-related research.

What the language Congress has used since 1996 targeted, the majority ruled, is only the original act of destroying the embryo to obtain material that can then develop into a cell line for research on human diseases.  The act of “derivation” of the material at the outset, the majority found, was separate from the use made of the resulting materials in a cell line.  Congress, that opinion said, used the present tense to say what activity it was forbidding, so it did not mean to ban research based on materials derived from embryos previously.

The ruling was a reaction only to the Dickey-Wicker Amendment as written (that is, it was a ruling involving a facial challenge to the words chosen by Congress), not to funding as a practical matter of any particular funding of any specific project.  The Court said the language of the law was sufficiently unclear that the Court was obliged to accept the view of the Administration, if that did not actually violate the Amendment.  It found the Obama policy consistent with the Amendment.

The two scientists who filed the challenge — Drs. James Sherley and Theresa Deisher — now have the option of seeking en banc — that is, full Circuit Court — review of the Circuit panel decision, or of seeking review in the Supreme Court (now, or after any en banc request is decided).

Posted in Cases in the Pipeline

Recommended Citation: Lyle Denniston, Stem cell research may go on: D.C. Circuit, SCOTUSblog (Apr. 29, 2011, 12:54 PM), https://www.scotusblog.com/2011/04/118944/